The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Previously pending on this court's law and motion calendar for July 21, 2011, was plaintiffs' motion to compel further response to interrogatory number 1, filed June 29, 2011. William Baird appeared for plaintiffs. Norman Hile and Julie Totten represented defendant. After hearing oral argument and reviewing the joint statement, the court now issues the following order.
This case involves a proposed class action concerning overtime
compensation and other wages, wherein plaintiff seeks the names and
addresses of potential class members including all individuals who
worked for defendant Price Waterhouse Coopers ("PwC") from October,
2003 to the present, in the capacity of associate or senior associate
in the tax line of
service in California, and/or as senior associate in the assurance
line*fn1 in California, and did not hold a California
CPA license for some or all of the time they worked in these
positions. Plaintiffs claim to need this information to determine
whether common questions of law or fact exist, and whether their
claims are typical of the claims of the proposed classes.*fn2
Plaintiffs contend that the protective order in place does
not preclude the requested contact information, while defendant argues
that it does.*fn3 Defendant also contends that
plaintiffs have not met their burden to show that the requested
information is necessary or appropriate at this pre-certification
stage of the case.
The interrogatory at issue here, number one, seeks the identity of the aforementioned associates, including name, address, phone number, mobile phone number, email address, and social security number. The complete methodology of how to "Identify" is set forth in footnote 2 of the Joint Statement.
This interrogatory was first served on defendant on August 11, 2010, and defendant served its response on November 12, 2010. Plaintiffs argue that the protective order on file in this case does not preclude production of the requested information. The disputed portion of the protective order states:
Nothing in this Protective Order shall permit or require PwC to disclose, before a class is certified, the names and addresses of putative class members. If a class is ultimately certified in this Action, PwC shall disclose such information after an appropriate discovery request or order from the Court and subject to the provisions of this Protective Order. Moreover, nothing in this Protective Order shall require PwC to disclose other private confidential information about third parties, including but not limited to telephone numbers, social security numbers and individualized compensation or tax-related data, absent written permission from the third party authorizing PwC to disclose such information.
Campbell, (dkt. #43 at ¶ 3.) Plaintiffs argue that this language does not prohibit disclosure before class certification of names and addresses, but rather makes no determination about the ultimate production of the contact information at issue. Plaintiffs claim they never would have agreed to refrain from seeking contact information.
Defendant argues that this language specifically precludes pre-certification disclosure. Only once a class is certified does the order permit or require this information to be disclosed upon an appropriate discovery request or court order.
The protective order is ambiguous. By its literal terms, "[n]othing in this Protective Order shall permit or require..." does not preclude normal discovery activities outside the Protective Order designed to elicit the requested information. Plaintiffs are therefore correct if one only looks at this first sentence of paragraph 3. Also favoring plaintiff's construction is the fact that the overriding purpose of the protective order is to protect the confidentiality of information; using a protective order as a Rule 16 bifurcation of discovery device is an odd use of protective orders. Further favoring plaintiff's interpretation, paragraph 15 of the Protective Order certainly indicates that the scope of discovery is not affected by the Protective Order: "This protective Order shall not enlarge or affect the proper scope of discovery in this or any other litigation."*fn4 (Emphasis added). Finally, at hearing, the court understood that defendants drafted the protective order for use in another action, and incorporated its terms into this litigation. See Docket #25. Drafting ambiguities are generally construed against the drafter. Cahill Dehe Band etc. v. California, 618 F.3d 1066, 1076 (9th Cir. 2010).
On the other hand, the sentence in paragraph 3 (quoted above)*fn5 describing how class members identification can be disclosed and protected post-certification implicitly favors defendant's construction that the order was designed to preempt pre-certification discovery.
The court finds that overall, the Protective Order does not "affect" the scope, including timing, of discovery concerning pre-certification class member identification discovery; therefore, the requested discovery will not be denied on the basis that the Protective Order precludes it.
Having found that the protective order does not resolve the issue, the next step is to determine the ordinary burden to acquire such pre-certification discovery and whether plaintiffs have met it. The parties disagree over the burden, plaintiffs arguing that it requires only a very minimal prima facie showing, citing Tomassi v. City of Los Angeles, 2008 WL 4722393 (C.D. Cal. 2008), and others. Although Tomassi was an FLSA case, plaintiffs sought similar information of potential class members pre-certification. In granting the motion to compel, the court relied on the FLSA and FLSA cases, but also relied on Gulf Oil Co. v. Bernard, 452 ...